Njeru & another v Mbutei (Civil Appeal (Application) 231 of 2018) [2023] KECA 1605 (KLR) (22 September 2023) (Ruling)
- Court
- Court of Appeal
- Case number
- 1605
- Citation
- [2023] KECA 1605 (KLR)
- Decided
- 22 September 2023
AI Summary
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Machine-generated — may contain errors. Not legal advice.
TypeCivil Appeal (Application)PostureApplication to strike out the Notice of Appeal and Record of AppealCoramW. KARANJA, L. KIMARU, A. O. MUCHELULE
Holding
The notice of appeal and the record of appeal are hereby struck out with costs to the applicant.
Facts
The appellants (Njeru & Ireri) filed a notice of appeal on 26th October, 2018, but failed to serve it upon the respondent (Mbutei). The respondent filed the record of appeal on 11th December, 2018, and served it on 23rd January, 2019, which was outside the stipulated time.
Issues
- Service of the Notice of Appeal
- Service of the Record of Appeal
Reasoning
The court found that the respondent did not serve the notice of appeal upon the applicant and the record of appeal was served over a month after it was lodged in court. The court held that execution of a decree cannot be used as an excuse to defeat an aggrieved party's right of appeal.
Outcome
The application is granted.
Orders
- The notice of appeal and the record of appeal are struck out with costs to the applicant.
Authorities cited
Cases cited (3)
- Dishon Ochieng v SDA Church, Kodiaga [2012] eKLR
- Section 159 of the Constitution
- Section 3A and 3B of the Appellate Jurisdictions Act
Experimental AI summary generated by a language model, not a lawyer. It may contain errors or omissions and must not be relied on for legal decisions — the full judgment below is the authoritative source.
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